Sanidul Islam, a 25-year-old driver living in Barpeta in Assam bought a small parcel of land in 2019. But actually registering the sale became a nightmare. The reason: an unofficial bar on Hindus selling land to Muslims in Assam.
“I can’t count how many times my father went to the circle office,” Islam told Scroll. “But every time he got the same reply. They say that Muslims are not allowed to buy land from Hindus anymore. After the Himanta government came, it became an unofficial rule and the registration was totally stopped. We are under lots of stress.”
On March 7, the Assam government made this practice legal, issuing a notification that prohibited the sale of land between people from different religious communities for the next three months. According to the notification, the Assam government had received intelligence inputs of “several cases of attempt of transfer of land by fraudulent means” in the state due to which land has been forcibly transferred “to some religious communities from some other religious communities”. The notification also alleged that such transfers are aimed at stoking communal tensions in the run-up to the Lok Sabha elections.
According to legal experts, this notification is unconstitutional for discriminating on the grounds of religion. However, in spite of that, the bar on the sale of land between people from different religious communities has existed for some time now on the ground.
Background
Land is an emotive issue in Assam, intertwined with the state’s identity politics around language and religion. Assamese nationalist groups have always expressed anxiety that the so-called outsiders are usurping the land of so-called natives.
In 2016, the Bharatiya Janata Party made the protection of land one of its main poll planks, with the slogan jati (nation), maati (soil), bheti (hearth).
After it came to power, few Muslims got the land under the Assam government’s flagship scheme, Mission Basundhara, which allows the state to regularise land held by cultivators and other occupants without land titles.
Unofficial policy
Hasmat Ali, a 53-year-old resident of Ghugubari village in Lower Assam’s Barpeta district, used to live in Char Charia village, at the bank of the river Beki, a tributary of the Brahmaputra that flows through Barpeta.
However, Ali’s house was washed away by the floods and erosion in the monsoon in 2000 and his family had to take refuge at the Ghugubari village grazing pasture – government-controlled land – about 4 km away.
After becoming landless and staying for 19 years in a government land, where he consistently faced fear of eviction, Ali finally bought 0.621 acres of land with Rs 6 lakh from Manoranjan Pathak, a resident of Ghugubari village.
“I was working day and night as a daily wage labourer to gather and save this huge amount of money to buy the land,” Ali, who now works as a carpenter, told Scroll.
Ali paid Rs 5.65 lakh on January 20, 2019 and the remaining money on February 8. Both Ali and Pathak signed in a stamp paper in which details of the purchase were mentioned. Scroll has seen the copy of the stamped sale agreement.
“The land owner already gave us the full possession of the land after we made the full payment,” Ali told Scroll. “We have been staying here since then and already built the houses.”
However, Ali has not managed to register the piece of land despite his repeated attempts even after five years. His multiple visits to the local revenue circle office did not yield any results.
“Whenever we went to the office to apply for the NOC [no objection certificate] for the transfer of land from the owner to us, they told us that the registration of land is not allowed anymore if the buyer is a Muslim and the seller is a Hindu,” Ali said.
This has left families like Ali’s and Islam’s as well as hundreds of others who have been facing difficulties to register their purchased land despite paying money to the previous owners in a lurch and a vulnerable situation. They can be asked to vacate the land on which they built their house since it is not in their name.
“Do we have to live in this land like this forever without any legal documents? Ali lamented. “On paper, we are still landless. When will this harassment end? We don’t know what will happen and what will we do.”.
However, he said that some Muslims, who had connections and money, managed to do registration with the help of “third-party people”, referring to the land brokers.
“They paid Rs 1 lakh to register the land,” he said. “But we don’t have the money to pay the officials.”
Islam said he had submitted all kinds of documents which are needed to purchase and transfer the land in their name. He also mentioned an alleged nexus of officials and brokers, a repeated allegation heard by Scroll whenever it visited circle officials.
“Without paying money, your file will not move from a single table in the Barnagar circle office,” Islam said. “From the clerk to the Lot Mandal [a state revenue department officer] and including the senior officials, everyone takes bribes in order to register land. We purchased the land with Rs. 6 lakh. Do we have to bribe Rs. 6 lakh more to register the land? There are hundreds of people like me who are suffering.”
Senior Barpeta district official Khanindra Das, the additional deputy commissioner who looks after the revenue department, told Scroll, “I don’t know anything about it,” when asked about the struggle and difficulties faced by Ali and Islam to register the land.
“Now, it is officially banned for three months as there is a notification issued by the governor,” Das said. “I don’t know if they will be allowed to buy it after three months.”
Unconstitutional prohibition?
Delhi-based senior advocate Mohan Katarki called the notification “ex facie unconstitutional” – that is, unconstitutional on the face of it – for being vague and not based on any hard evidence. He said that it also violates Article 15(1) of the Constitution for prohibiting sale on the grounds only of religion.
“How does the sale of land between consenting parties affect the security of the state?,” he asked. “If a transfer of land may lead to potential tension, the parties themselves will refrain from engaging in that sale,” he added.
Guwahati-based lawyer and former sub-judicial magistrate in the Assam Judicial Service Sarfraz Nawaz told Scroll that the only prohibition on sale of land allowed in Assam is that between tribal and non-tribal communities, which is constitutionally permitted by the Sixth Schedule of the Constitution.
Nawaz referred to many recent cases of land being fraudulently sold, with connivance of revenue authorities, in the state. Several arrests of the public officers and advocates involved have also been made in some of such cases in the last few months in Guwahati, he said.
However, it is hard to say that this could be correlated with the notification, he said.
“This goes against fundamental rights in Part III of the Constitution,” he said.
Advocate Haamim KJ Ahmed, who practises at the Guwahati High Court, termed the notification “unreasonable”. He acknowledged that satra land, that is, land belonging to Vaishnavite monasteries, in the state had come under illegal encroachment over the years and the state government had recently been making efforts to clear squatters.
However, such encroachments are not found to have been made solely by members of any particular religious community.
“It is difficult to understand how stopping the sale of land among members of different religious communities would stop such encroachment,” he said.
Ahmed called the notification a “political gimmick”.
On whether it may be struck down by courts, he said that “since the bar is based on intelligence reports’, it may be justified by the government on the ground of sovereignty and integrity of the country.”
Katarki pointed out that since the ban is only for three months, which is a short period, the state may defend it on the basis that no material injury will be caused.
However, according to him, “this will hurt members of all religious communities”.
Parallels to Disturbed Areas Act in Gujarat
Currently, there is no similar law or rule in place elsewhere in India that outlaws the transfer of land between members of different religious communities.
The closest parallel can be seen in Gujarat, where the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991 has been used to effectively proscribe the transfer of land between Hindus and Muslims. Experts have held that the law has led to communal segregation and distortion of the land market.
The act empowers the government to declare specific areas as “disturbed” if there is a risk of communal riots or heightened communal tensions. In such designated areas, anyone wanting to sell their property needs prior approval from the district collector.
Currently, large parts of Ahmedabad, Surat and Vadodara – the three biggest cities in the state –as well as several smaller towns, are notified as “disturbed”.
While the act doesn’t directly prohibit property sales between Hindus and Muslims, it creates a system that demonstrably has this effect in practice.
As a result, Hindu sellers are disincentivised from approaching Muslim buyers, even if they offer a competitive price.
Challenges to the validity of the act are pending before the Gujarat High Court. The High Court had in 2021 effectively stayed certain amendments to the act made by the state government in 2020 under which the government could have used religious grounds to declare a disturbed area.